The State of Western Australia v CGT - [2018] WASCA 226

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CGT [2018] WASCA 226
CORAM:   BUSS P
BEECH JA
HALL J

HEARD:   7 NOVEMBER 2018
DELIVERED          :   21 DECEMBER 2018
FILE NO/S:   CACR 53 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant

AND

CGT
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SWEENEY DCJ
File Number             :   IND 810 of 2016

Catchwords:

Criminal law - Appeal against sentence - Seven counts of sexual penetration of a child under the age of 13 - Whether sentence manifestly inadequate - Where victim biological granddaughter of the offender - Where offender aged 76 at sentencing

Legislation:

Criminal Code (WA), s 320(2)

Result:

Appeal allowed
Respondent resentenced

Category: B

Representation:

Counsel:

Appellant	:	Ms A L Forrester SC
Respondent	:	Mr K Burgoyne

Solicitors:

Appellant	:	The Director of Public Prosecutions (WA)
Respondent	:	Chambers Legal

Case(s) referred to in decision(s):

BPR v The State of Western Australia [No 2] [2007] WASCA 200
Bropho v The State of Western Australia [No 2] [2009] WASCA 94
FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313
Grenfell v The State of Western Australia [2018] WASCA 31
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
HFM v The State of Western Australia [2012] WASCA 217
Hughes v The State of Western Australia [2014] WASCA 78
Juma v The State of Western Australia [2011] WASCA 54
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The State of Western Australia [2006] WASCA 256
Mills v The State of Western Australia [No 2] [2017] WASCA 52; (2017) 265 A Crim R 484
MPD v The State of Western Australia [2008] WASCA 57
PDS v The State of Western Australia [2006] WASCA 20
PP v The State of Western Australia [2004] WASCA 144
R v Smith (1987) 44 SASR 587; (1987) 27 A Crim R 315
RNN v The State of Western Australia [2010] WASCA 26
Rowan v The State of Western Australia [2009] WASCA 185
Smith v The State of Western Australia [2010] WASCA 176
Stubley v The State of Western Australia [2010] WASCA 36
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v Fyffe [2018] WASCA 173
The State of Western Australia v PJW [2015] WASCA 113
The State of Western Australia v Prince [2011] WASCA 22
Truscott v The State of Western Australia [2007] WASCA 62
Van Zyl v The State of Western Australia [2017] WASCA 1
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Woods v The Queen (1994) 14 WAR 341

JUDGMENT OF THE COURT:

This is a State appeal against sentence.
The respondent was convicted after trial of seven counts of sexual penetration of a child under 13, contrary to s 320(2) of the Criminal Code (WA). He was sentenced to a total effective sentence of 6 years' imprisonment with eligibility for parole. The sentence was backdated to commence on 1 December 2017.
The State appeals on the ground that the total effective sentence failed to reflect the overall criminality of the offending conduct. In effect, this is a claim that the total sentence breaches the first limb of the totality principle. For the reasons that follow, the appeal must be allowed and the respondent resentenced.

The facts

The facts of the offending as found by the trial judge are not in dispute.
The victim in this case is the respondent's biological granddaughter, EC. Her mother is one of the respondent's daughters. When EC was aged 5 or 6 years of age she moved to this State from New South Wales with her mother and siblings. The respondent was already living in Western Australia at an address in Girrawheen, where he resided between February and August 1992. The family initially stayed with the respondent in Girrawheen before moving to their own home in Koondoola.[1]
[1] Sentencing ts 454.
In around September or October of 1992, the respondent moved to a house in Yokine. At trial, the respondent denied any association with that address, but the trial judge found that the respondent's evidence in that regard was entirely and deliberately false. During the period that the respondent was living at this house he minded his three grandchildren, EC and her two siblings. He would come to their home and collect them and take them to a park while their mother and her boyfriend went to do shopping. He also visited them at their home.[2]
[2] Sentencing ts 454 - 456.
The facts in relation to count 1 were that on an occasion in late 1992 or 1993, the respondent was minding EC and her older brother at his house in Yokine. He sent EC's older brother across the road to a park to play. At this time EC was aged 5 or 6 years old and the respondent was aged 50 to 51. The respondent remained in his house with EC. He put EC on the bed in his bedroom at the front of the house. He then penetrated EC's vagina, to at least some extent, with his penis. From the front bedroom, the respondent was in a position to see the park and the road at the front of the house. He saw EC's older brother returning at some stage and that caused him to stop what he was doing. At some point afterwards, the respondent told EC that she was a good girl, that it was a secret and that she could have a Cherry Ripe because she had 'done good'. He later gave her the promised chocolate bar.[3]
[3] Sentencing ts 456.
In relation to count 2, the facts are that, on a different occasion at around the same time, EC was at the respondent's house for dinner. She was staying the night at the house. That evening EC was in the bathroom about to have a shower. She was undressed, but had not yet turned on the water. The respondent entered the bathroom and placed EC onto the floor. She complained that her back was cold and so the respondent put a towel underneath her. He then penetrated her vagina, to at least some extent, with his penis. After he had finished the respondent told EC that what had happened was his little secret and that, because she had been so quiet, she could have two Cherry Ripes. He later gave her the promised chocolate bars.[4]
[4] Sentencing ts 456.
Count 3 occurred on a different occasion at around the same time. The respondent took EC in his car to pick strawberries. He drove along a road near a pine plantation and then drove into the pine plantation itself. He drove until it was not possible to see the road anymore and then parked the car. He told EC to take her knickers off and positioned her on the front seat so that one of her legs was raised up on his lap. The respondent then put his fingers in and out of EC's vagina, penetrating her digitally for some period of time. Afterwards, the respondent told EC that he loved her and that, because she was a good girl, he would now take her to pick strawberries, which he did.[5]
[5] Sentencing ts 456.
Count 4 related to another occasion at around the same time when the respondent took EC to pick strawberries. He again drove his car to a pine plantation and out of the view of the road. On this occasion, the respondent and EC were outside of the car and EC was sitting on the bonnet. The respondent took EC's knickers off and then penetrated her vagina with his penis. Afterwards he told her that she was a good girl and the two of them went to a strawberry farm to pick strawberries.[6]
[6] Sentencing ts 456 - 457.
Count 5 occurred on another occasion at around the same time. The respondent took EC to a medical centre in a shopping centre to have a wart removed from the bottom of her foot. EC said that she was about 6 years old when this occurred. After seeing the doctor the respondent asked EC whether she wanted a special piggyback ride. EC agreed and the respondent put her in the piggyback position with her arms holding him around his neck from behind. The respondent put his hands behind EC, supporting her bottom. As he did so, he pulled her knickers to one side and touched her vagina with his fingers and then inserted a finger into her vagina, which hurt her. This occurred in a public place but when EC was wearing a long dress and the respondent's hands were obscured underneath the dress. Afterwards the respondent asked EC if she liked her special piggyback ride and she said that she did, but added that it had tickled at first but then hurt.[7]
[7] Sentencing ts 457.
Count 6 relates to another occasion at around the same time. The respondent took EC and at least one of her brothers on a camping trip. The respondent, EC and her brother shared a tent, with the respondent sleeping in the middle and a child on either side. Although they had sleeping bags they did not sleep inside the bags, but used them as open blankets. During the night, EC woke to find that the respondent was digitally penetrating her vagina. He told her that she had better be quiet and not wake her brother because, if she woke him, he would leave them in the bush. After removing his finger he then penetrated her vagina from behind with his penis. It is the penile penetration which was the subject of count 6.[8]
[8] Sentencing ts 457.
Count 7 occurred on another occasion at around the same time. At around that time Constable Care had visited the primary school that EC attended and spoke about stranger danger and that no‑one should touch their bodies without their permission. The respondent and his first wife, EC's grandmother, came to the house in Koondoola because EC's mother and her boyfriend had gone out. Whilst EC was in her mother's bedroom the respondent entered to say goodnight to her. He then lay on the bed next to her and put his fingers into her vagina. He told her that he loved her, that she was a good girl and that it was their little secret.[9]
[9] Sentencing ts 457 - 458.
At the trial EC testified that there were other occasions when sexual touching occurred, but she was unable to particularise them other than for an occasion which had occurred in another State. The trial judge accepted that evidence and made a finding that there was an ongoing, dysfunctional sexual relationship between the respondent and EC.[10]
[10] Sentencing ts 458.
During the period that the sexual abuse was occurring EC complained to both her mother and her mother's boyfriend. The mother's boyfriend gave evidence at the trial that he could recall occasions when EC had complained to him. In particular he recalled an occasion when he was helping EC to bathe and noted that she was wearing multiple pairs of knickers. When asked why she was doing that EC told him that she was doing it to 'stop Poppy'. The former boyfriend said that on another occasion he and the mother had arrived at the respondent's house to pick up the children and found EC's two brothers locked outside. The respondent was inside the house with EC. When the former boyfriend asked EC what had been going on she appeared embarrassed and went to a dusty window and wrote the word 'sex' on the window. The trial judge was satisfied that after the Constable Care visit to the school EC did tell her mother and her mother's boyfriend that the respondent was sexually interfering with her.[11]
[11] Sentencing ts 458.
The response of EC's mother was to take the position that EC was lying and that nothing needed to be done about the accusations. This occurred in the context of the respondent being on trial in September 1993 on charges of incest in respect of another daughter, of which he was acquitted. The trial judge was of the view that EC's mother adopted an attitude of protecting the respondent. Her denials that EC ever made allegations to her were described as 'arrant nonsense'. The mother's boyfriend raised the need to do something about what EC was saying and ultimately this caused him to report the mother to the Department for Child Protection.[12]
[12] Sentencing ts 458 - 459.
EC was taken out of school and interviewed on 28 September 1994. After that interview, in November 1994, the mother took EC to the Princess Margaret Hospital. The medical report at that time was that there were signs consistent with chronic sexual abuse. However, that opinion was later revised and the evidence at trial was that the findings were entirely neutral.[13]
[13] Sentencing ts 459.
Notwithstanding the allegations and the results of the medical examination, EC's mother remained completely protective of the respondent. This resulted in EC being taken into care by the Department. At this time the mother also suffered an illness which may have contributed to EC staying in foster care for an extended period of time.[14]
[14] Sentencing ts 459.
The respondent was informed of the allegations and, once the incest trial was complete, he and his wife left the State. Some years later his wife passed away in New Zealand. EC's mother moved to the eastern states with the other children, leaving EC in this State in foster care.[15]
[15] Sentencing ts 459 - 460.
In January 2015, EC made a complaint to the police. By this time the respondent was living in New South Wales with his third wife. He was arrested in late 2015 and extradited to this State.[16]
[16] Sentencing ts 459.
At trial, the respondent's defence was to deny that the incidents had occurred. He continued to be supported by EC's mother. The trial judge found that the respondent's denials were unconvincing and that both the respondent and the mother had made assertions as to when the respondent had left the State that had no credibility. The respondent had also given 'patently false evidence' as to having no connection with the house in Yokine, and about giving evidence at the incest trial in September 1993. Her Honour found that she could place no reliance whatsoever on the version of events given by the respondent or EC's mother.[17]
[17] Sentencing ts 459 - 460.

Victim impact

In her victim impact statement EC stated that she had suffered anxiety, flashbacks and panic attacks from a very young age. At around the age of 15, whilst still in foster care, she became an angry, rebellious and unhappy person who felt extremely unwanted, unworthy and who suffered from self‑hatred in addition to her continuing anxiety. She became addicted to alcohol and drugs for a period of about 10 years. She stopped drinking and using drugs when she became pregnant at the age of 25. However, this left her with underlying anxiety, for which she now takes medication.
EC states that because she was placed in foster care, and her mother chose to side with the respondent and left Western Australia with her siblings, she was deprived of a normal family life and denied the opportunity to know her siblings. It was only in more recent times that she has been able to make contact with some of her siblings.
The abuse that EC suffered has adversely affected her relationships. She struggles to trust her partner of 14 years or to show that she loves him. She recognises that she is overprotective of her daughter and is unable to let her daughter go on sleepovers or be out of her presence or that of other adults that she trusts. She believes that her daughter's innocent and carefree childhood has been adversely affected by what happened to her.
EC states that her schooling was adversely affected by the abuse. She had nightmares and was too scared to go to school because she feared that the respondent would come to her school and get her. She had difficulty concentrating, lacked social skills and found school very difficult. This resulted in her falling behind at school and failing to acquire some basic skills. This has affected her ability to find and retain employment.
The sentencing judge made the finding that EC's mother had substantially contributed to the breakdown in the relationship between her and EC, however that relationship would not have been fractured by EC going into foster care if not for these offences having occurred. Her Honour found that EC's placement into foster care was initially due to these offences having been reported.[18]
[18] Sentencing ts 460 - 461.
Her Honour noted that given the absolute lack of support that EC was given by her mother as a child and the fact that she was in foster care for many years, it was not surprising that she lacked the emotional stamina to go to the police once she reached young adulthood.[19] In this regard her Honour said:[20]
So she had a very dysfunctional and troubled childhood and youth, and in those circumstances I don't consider that the delay in going to the police is something you should get the benefit of in a mitigatory sense, when you hugely contributed to the dysfunction in her life.
You were not the only cause of that dysfunction, because from what I saw of her mother in the witness box, her mother was an extremely damaged individual, and incapable of providing the sort of support that is required to a child in these circumstances.
[19] Sentencing ts 464.
[20] Sentencing ts 465.

Personal circumstances

The respondent was 76 years old at the time of sentencing. He was born and raised in Germany by his mother, who was a widow, having lost her husband in the Second World War. The family suffered hardships that were typical of that time.[21]
[21] Sentencing ts 461.
The respondent did not particularly like school but achieved average grades and completed his schooling. He then worked for a large industrial manufacturing company and obtained qualifications as a mechanic. He married at the age of 21 and moved to Australia in 1966 with his wife and two young daughters. In Australia, he worked for many years in his own business as a television and public address systems repair man. He retired about 10 years ago.[22]
[22] Sentencing ts 461.
The respondent has referred to his first marriage in positive terms. After spending some years in Western Australia he and his wife returned to live in Germany. They later moved to New Zealand. The respondent's wife was diagnosed with cancer and passed away in 1999. The respondent has had two further marriages. He remarried in 2001, but his second wife also died of cancer three years later. He remarried again in 2014. His current wife is much younger and has continued to live in New South Wales. The respondent has stated that he is unsure about the current future of his marriage.[23]
[23] Sentencing ts 461 - 462.
The respondent told a psychologist that he had maintained a reasonably good relationship with his two daughters and would be able to live with either of them upon his release. The trial judge doubted the credibility of this assertion given that one of his daughters had made a complaint in the early 1990s that he had sexually abused her. This had resulted in the respondent being charged with sexual offences. He was tried and acquitted of those offences. The trial judge acknowledged that those allegations were in themselves irrelevant to the sentencing exercise, but they did make it difficult to accept the respondent's assertion that he had a good relationship with both of his daughters.[24]
[24] Sentencing ts 462.
A psychologist who had prepared a report was unable to explore any triggers behind the offending because the respondent maintained his stance of denial. However, the psychologist did note that the respondent's first wife was diagnosed with cancer around the same time as the offending behaviour. The psychologist also stated that the respondent presented with symptoms of depression and that it was likely he had suffered depression for a long time, although she linked that principally to the loss of his first and second wives. A risk assessment placed the respondent in a very low risk category for reoffending. The factors used to determine this risk included the respondent's current age.[25]
[25] Sentencing ts 462 - 463.

The respondent has some ongoing health issues. He had previously had prostate cancer and has also had multiple surgical interventions in relation to his bladder. This surgery has left him with the need to use a catheter bypass and it was assumed in sentencing that this was a situation that would remain unchanged in the future. The respondent also has chronic pulmonary disease, most likely caused by smoking. He has high blood pressure. He has also had a rectal polyp which doctors consider requires follow‑up and watching. There was nothing to suggest that any of those conditions could not be adequately managed within a custodial setting.[26]
[26] Sentencing ts 463.
Most of the respondent's family members who still support him reside in the eastern states. It was accepted that, in consequence, imprisonment was likely to be an isolating event.[27]
[27] Sentencing ts 463.

Sentences imposed

In sentencing the respondent, the learned trial judge described the offences as a gross breach of trust against the respondent's young and vulnerable granddaughter. Her Honour said that she was satisfied that the abuse was chronic and went on for a period of at least a year, as a minimum. She described the offences as opportunistic in the sense that the respondent took advantage of occasions when he was alone with EC. However, he also created occasions to be alone with her by sending her brother across the road to the park and by taking her to pick strawberries. The respondent had imposed secrecy on EC and intimidated her by suggesting that if she said anything she would get into trouble and she would suffer the ill‑effects of the respondent's anger. Her Honour acknowledged that to a small child those sorts of threats would have credibility. The respondent also bribed EC with chocolates, a thing of value to a 5 or 6‑year‑old child. EC would have regarded being given chocolates as praise and affection, something a young child would seek in any circumstances.[28]
[28] Sentencing ts 465 - 466.
Her Honour referred to the respondent's health issues, his age and the fact that imprisonment would be served in Western Australia, far from his supporting family. In regard to the respondent's age, her Honour acknowledged that any term of imprisonment would represent a larger portion of his remaining expected lifespan than if he had been sentenced at the time of the offending. In regard to his health issues, her Honour said that there were no medical problems that could not be adequately managed in a custodial setting, and that it was the duty of the Department of Corrections to ensure that the respondent's medical needs were met.[29]
[29] Sentencing ts 463 - 464.
As noted earlier, her Honour found that the respondent's offending conduct had 'hugely contributed' to the dysfunction in EC's life. She did not consider that the delay between the offending and it being reported was mitigatory. There was nothing to suggest that in the intervening years the respondent had done anything to contribute to the community over and above simply living in it and not committing offences. The respondent had not undertaken any rehabilitation during that period, or engaged in counselling to address his offending behaviour, because he maintained his position of denial.[30]
[30] Sentencing ts 465.
Her Honour was satisfied that the offences required the imposition of terms of imprisonment, and that nothing less could possibly capture the seriousness of the offending. She said that, whilst specific deterrence carried less significance given the low risk of reoffending, the need for general deterrence remained high. She acknowledged the need to send a message to the community that those who use children for their own sexual gratification will be met with serious punishment, even years after the event. However, she said that the length of the sentences to be imposed would be tempered on account of the respondent's age, general health difficulties and personal circumstances. She said that the sentence would be rather lower than it would have been had she been sentencing the respondent as a younger man at the time of the offences.[31]
[31] Sentencing ts 466.
Counts 1, 2, 4 and 6 were the offences of penile penetration. On each of those counts, her Honour imposed 3 years' imprisonment. Counts 3, 5 and 7 were the offences of digital penetration. On each of those counts, her Honour imposed terms of 2 years' imprisonment. The sentences on counts 1 and 6 were ordered to be served cumulatively. All other sentences were ordered to be served concurrently. That produced a total effective sentence of 6 years' imprisonment. The respondent was made eligible for parole and the sentence was backdated to commence on 1 December 2017, to take into account time spent in custody prior to sentencing.[32]
[32] Sentencing ts 466.
The convictions meant that the respondent became a reportable offender within the meaning of the Community Protection (Offender Reporting) Act 2004 (WA). He was also made the subject of a mandatory family violence restraining order for the term of his life, restraining him from any contact with EC.[33]
[33] Sentencing ts 467.

Ground of appeal

The ground of appeal is as follows:[34]
The sentencing judge erred in law in imposing a total effective sentence of 6 years' imprisonment that infringed the first limb of the totality principle in that it failed to reflect the overall criminality of the offending conduct.
[34] White Appeal Book, 7.
Leave to appeal was granted in respect of that ground of appeal by Mazza JA on 27 May 2018.

Relevant law

The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, having regard to all relevant facts and circumstances including those referrable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.[35]
[35] See, eg, Grenfell v The State of Western Australia [2018] WASCA 31 [59].
The maximum penalty for each of the offences was 20 years' imprisonment.[36]
[36] Section 320(2) of the Criminal Code.
The primary sentencing considerations for offences of the kind committed by the respondent are appropriate punishment of the offender, and personal and general deterrence, having regard to the need to protect vulnerable children.[37]
[37] See, Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J; Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J; Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA; Steytler P & McLure JA agreeing); The State of Western Australia v PJW [2015] WASCA 113 [34] (Buss JA; Martin CJ & Mazza JA agreeing).
In cases of intrafamilial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because offences of this kind generally do not impact on other people or upon their perception of the offender until they are revealed.[38]
[38] See, MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA; Wheeler & Buss JJA agreeing).
The increased likelihood of significant and enduring harm that comes with repetitive and prolonged sexual abuse against a child is one of the reasons that accumulation of the sentences for the individual offences is to be expected.[39]
[39] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [294].
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside of the range does not necessarily establish that the exercise of the sentencing discretion in a particular case miscarried. Sentences imposed in comparable offences are merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly inadequate or the total effective sentence infringes the first limb of the totality principle. The sentences imposed in other cases will be relevant for the purpose of ensuring broad consistency. However, the sentences imposed in other cases do not fix the range of a sound exercise of sentencing discretion in a particular case.[40]
[40] See, eg, The State of Western Australia v Fyffe [2018] WASCA 173 [17].
There is no tariff for offences of the kind committed by the respondent, or for sex offences generally, because of the great variation that is possible in the circumstances of such offending and of offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.[41]
[41] See, The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [67] ‑ [69] (Steytler P); Juma v The State of Western Australia [2011] WASCA 54 [37] ‑ [38] (McLure P, Newnes JA & Mazza J).
The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of a sentencing judge merely because it would have exercised the discretion in a different manner.[42] For an appeal on a ground alleging infringement of the first limb of the totality principle to succeed, the State must establish that the total effective sentence imposed was unreasonable or unjust, having regard to all of the relevant circumstances.[43]
[42] See, Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ)
[43] Fyffe [17].

Broadly comparable cases

The State referred to the reviews of sentences for multiple counts of sexual offending against a child that were undertaken in VIM v The State of Western Australia,[44] PDS v The State of Western Australia,[45] The State of Western Australia v Prince,[46] and The State of Western Australia v FJG.[47] In terms of broadly comparable cases, the State relied on PJW, Mills v The State of Western Australia [No 2],[48] Van Zyl v The State of Western Australia,[49] Rowan v The State of Western Australia,[50] and Truscott v The State of Western Australia.[51]
[44] VIM [288] - [315].
[45] PDS v The State of Western Australia [2006] WASCA 20 [28].
[46] The State of Western Australia v Prince [2011] WASCA 22.
[47] The State of Western Australia v FJG [2012] WASCA 206 [56] ‑ [60].
[48] Mills v The State of Western Australia [No 2] [2017] WASCA 52; (2017) 265 A Crim R 484.
[49] Van Zyl v The State of Western Australia [2017] WASCA 1.
[50] Rowan v The State of Western Australia [2009] WASCA 185.
[51] Truscott v The State of Western Australia [2007] WASCA 62.
In PJW, a State appeal against a sentence of 6 years and 6 months' imprisonment imposed after trial for seven counts of sexual penetration of a de facto child under the age of 16 years and two counts of indecent dealing with a de facto child under the age of 16 years committed over a period of 10 months was upheld. The victim was aged between 7 and 8 years at the time of the offences and the offender was aged between 32 and 33 years. The sentence was increased to one of 9 years' imprisonment.
Like the respondent, PJW showed no remorse, victim empathy or acceptance of responsibility. However, he did not have the mitigating factor of old age and had two prior convictions for sex offending against a child, which made personal deterrence of significance.
Mills [No 2] involved two offenders (Mills and Coombs) who were convicted of historical child sex offending after trial. Mills was aged 76 at the time of sentencing and was convicted after trial of five counts of indecent dealing with a child under 14 and one count of committing an act of gross indecency. He was sentenced to a total of 5 years' imprisonment. He was blind in one eye and had a number of other health problems. He had no prior convictions and his risk of reoffending was low. Coombs was aged 75 at the time of sentencing and had some medical conditions. He was convicted of two counts of indecently dealing with a child under 14, two counts of permitting a child to have carnal knowledge of him, two counts of carnal knowledge against the order of nature and three counts of committing an act of gross indecency. He was sentenced to a total of 9 years' imprisonment. The offences were contrary to now repealed provisions, the maximum penalties for which were less than those applicable for such offending under current provisions. Appeals by both Mills and Coombs against their total effective sentences were unsuccessful. In respect of Coombs, the court reviewed a number of cases and concluded that his sentence of 9 years' imprisonment was broadly consistent with sentences imposed in those cases.[52]
[52] Mills [No 2] [45] - [53].
The age and personal circumstances of Coombs and Mills are comparable to those of the respondent. There are some material differences in the offending conduct, in particular, that Coombs offended against two victims. On the other hand, the maximum penalty for the offences committed by the respondent is higher than the maximum penalties for the offences committed by Coombs, and the offending committed by the respondent was more serious than that committed by Mills.
In Van Zyl, a sentence of 7 years and 6 months' imprisonment was imposed on a 73‑year‑old offender who pleaded guilty to 13 sexual offences committed whilst he was in his late 40s against a 9 to 10‑year‑old child. He received a 25% discount for his plea of guilty. The offences involved eight counts of sexual penetration of a child under 16 (mainly oral but including one count of anal penetration) and five counts of indecent dealing with a child under 14. Van Zyl was in relatively good health and had prior convictions for child sex offences. However, given his age he was considered to be at low risk of reoffending and personal deterrence was not a significant consideration.
The respondent's offending was more serious than that of Van Zyl. On the other hand, he is in poorer health and has no prior convictions. However, taking into account the discount for pleading guilty, the sentence imposed on Van Zyl was significantly greater than that imposed on the respondent.
In Rowan, the offender pleaded guilty to 11 counts of sexual offending against a child under the age of 13 years and two counts of sexual offending against a child between the ages of 13 and 16. The offences included seven counts of sexual penetration, four counts of indecent dealing, one count of procuring a child to do an indecent act and one count of encouraging a child to engage in sexual behaviour. All of the penetration offences involved cunnilingus. The offending occurred over a one‑year period when the offender was aged between 74 and 75 years, and the four complainants were aged between 8 and 15 years. An appeal against a total effective sentence of 15 years' imprisonment was upheld and a total effective sentence of 8 years' imprisonment was substituted.
Whilst there were more complainants in Rowan than in the present case, the offender in that case was not in a position of trust and the sexual penetration did not include penile penetration. The court in Rowan also found that the offending did not involve actual or threatened violence, aggression, intimidation or any grooming. The offender in Rowan entered a fast‑track plea of guilty to all counts, which the court was satisfied evidenced remorse and which deserved a significant discount.[53]
[53] Rowan [12] - [13].
In Truscott, the offender was convicted after trial of four counts of sexual penetration of a child under 13, one count of indecent dealing with a child under 13 and one count of indecently recording a child under 16. The offences occurred over a period of approximately two years when the offender was about 40 years of age, and the complainant was between 5 and 7 years old. The offender was the complainant's de facto father. The offences included penile penetration of the anus, and coercion was involved. An application for leave to appeal against a total effective sentence of 10 years' imprisonment was dismissed.
Although advanced age and poor health were not considerations in Truscott, the nature of the offending is otherwise comparable. The difference in the sentences is not adequately accounted for by the mitigating factors of advanced age and poor health.
The respondent submits that the differences in the personal circumstances between the respondent and the offenders in many of the cases referred to by the State justifies the sentence imposed on the respondent in this case. The respondent also relies on Prince, Hughes v The State of Western Australia,[54] FGC v The State of Western Australia,[55] HFM v The State of Western Australia,[56] RNN v The State of Western Australia,[57] Bropho v The State of Western Australia [No 2],[58] BPR v The State of Western Australia [No 2],[59] and Stubley v The State of Western Australia.[60]
[54] Hughes v The State of Western Australia [2014] WASCA 78.
[55] FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313.
[56] HFM v The State of Western Australia [2012] WASCA 217.
[57] RNN v The State of Western Australia [2010] WASCA 26.
[58] Bropho v The State of Western Australia [No 2] [2009] WASCA 94.
[59] BPR v The State of Western Australia [No 2] [2007] WASCA 200.
[60] Stubley v The State of Western Australia [2010] WASCA 36.
In written submissions, the respondent acknowledges that Bropho was an appeal against a sentence which was imposed at a time when the principle of double jeopardy on State appeals still applied, and that consequently it is not a true comparator and is of limited use. The respondent also acknowledges that Stubley was a case that did not involve offending against children. Given those concessions it is unnecessary to give further consideration to those cases.
In Prince, the offender was convicted after trial of 17 sexual offences against his granddaughter when she was aged between 9 and 11. The offences included eight counts of sexual penetration, two counts of indecent dealing, three counts of indecent recording, three counts of procuring a child to do an indecent act and one count of procuring a child to engage in sexual behaviour. The offender was aged between 48 and 50 years at the time of offending and 51 years at the time of sentencing. The offences occurred over at least a 14 month period and involved a serious breach of trust in respect of a vulnerable victim. Following a successful State appeal, the total effective sentence was increased to 8 years' imprisonment.
The respondent submits that Prince involved offending which was more serious and that the offender in that case did not have the mitigating factor of advanced age. However, in Mills [No 2], the sentence imposed on appeal in Prince was described as being lenient, and Prince was said to be of limited utility as a comparator as it would have been open to have imposed a substantially higher sentence in that case.[61] Prince must be regarded as an outlier.
[61] Mills [No 2] [52].
In Hughes, the offender was convicted after trial of six counts of sexual offending against three complainants. The offences were committed over about a two year period when the offender was aged between 41 and 44 years and the complainants were aged between 13 and 14 years. The offences included four counts of indecently assaulting a male, one count of carnal knowledge against the order of nature and one count of indecent dealing with a child under 14. Convictions did not occur until 30 years after the offending and the offender was aged 73 years when he was sentenced. The offender had a medical history that included Parkinson's disease, coeliac disease, prostate cancer, depression, osteoarthritis and dementia. There had been a significant deterioration in the offender's degenerative conditions, Parkinson's disease and dementia, in the period immediately preceding sentence. These conditions reduced his life expectancy and made imprisonment more arduous. On appeal a total effective sentence of 8 years' imprisonment was reduced to 5 years' immediate imprisonment, on the basis that the original sentence infringed both limbs of the totality principle.

Although Hughes was of a similar age to the respondent, his medical conditions were significantly more serious. Unlike the respondent, it was apparent that Hughes' medical conditions had reduced his life expectancy and made prison significantly more difficult. Those were critical factors in that case and make it an inappropriate case for comparison purposes. In any event, the offences in that case were less serious than those of the respondent and were subject to much lower maximum penalties.
In FGC, the offender was convicted after trial of two counts of aggravated sexual penetration without consent and three counts of indecent dealing. The offender was the grandfather of the complainant, who was between 5 and 9 years of age at the time of the offences. One of the offences involved penile penetration. An appeal against a total effective sentence of 6 years' imprisonment was dismissed.
The offender in FGC was of advanced age (he would be 81 years of age at his earliest date of eligibility for release) but there was no indication that any health condition had reduced his life expectancy or would make imprisonment more onerous. The offending conduct was less serious than that of the respondent. Furthermore, the dismissal of an offender's appeal against sentence does not set a benchmark for offences of that type. When compared to other comparable cases, the sentence in FGC could be described as lenient.
In HFM, the offender pleaded guilty to 10 counts of sexual offending against his son's step-daughter. The offences arose out of five discrete incidents and involved two counts of sexual penetration of a child under 13 and eight counts of indecent dealing with a child under 13. The counts of penetration did not involve penile penetration. The complainant was aged between 5 and 12 years when the offending occurred. The offender was aged between 58 and 65 years when the offending occurred and was 75 years of age when sentenced. The offender had profound hearing loss and severe osteoarthritis. An appeal against a total effective sentence of 6 years' imprisonment was allowed and a sentence of 4 years' immediate imprisonment was substituted.
Although the personal circumstances of the respondent are comparable to those of the offender in HFM, the respondent's offences were significantly more serious. Unlike HFM, the respondent did not plead guilty and had not shown any remorse for his offending, which had a profound effect on the victim. Moreover, the seven counts of which the respondent was convicted were representative of a course of conduct,[62] whereas in HFM the offences were not representative and arose from five discrete incidents.
[62] Sentencing ts 458.
In RNN, the offender pleaded guilty to five counts of indecent dealing with a child under 14 and six counts of indecent assault. The victims were the offender's three nephews, who were aged between 9 to 16 years, 10 to 14 years, and 13 to 16 years, respectively, at the time of the offending. The offender was 27 to 37 years of age at the time of the offending and 70 years of age when sentenced. The offences involved acts of touching, masturbation and oral sex. The total effective sentence was 5 years' immediate imprisonment. RNN's appeal against sentence was dismissed.
The offending in RNN was less serious than that of the respondent and involved offences that attracted much lower maximum penalties. For those reasons alone RNN is not a useful comparator. There is also the significant difference in the fact that RNN pleaded guilty.
In BPR [No 2], the offender was convicted after trial of two counts of sexual penetration and five counts of indecent dealing relating to three complainants who were aged 11 to 14, 11 to 12 and 14, respectively. Both counts of penetration involved acts of cunnilingus. A total effective sentence of 8 years and 4 months' imprisonment was held not to have infringed the totality principle.
The offences in BPR [No 2] were less serious than those of the respondent. Even taking into account the fact that three complainants were involved, BPR [No 2] does not assist the respondent. To the contrary, it supports the State's position.

Merits of the appeal

The respondent's offending was very serious. The respondent was convicted of seven offences, the maximum penalty for each of which was 20 years' imprisonment. His offending involved the abuse of his position of trust as the victim's grandfather. The offending was not momentary or impulsive, but sustained and repetitive. The respondent used coercion and threats to ensure that the victim complied with his demands and maintained secrecy regarding the abuse. The victim was very young and vulnerable at the time of the abuse, and there was a marked disparity between her age and that of the respondent. The offending included multiple acts of penile penetration, and the respondent persisted in his conduct despite being told by the victim on at least one occasion that the penetration hurt her. When the abuse first came to light the respondent's position of denial was a significant factor in the victim being placed into foster care and being estranged from her family. The long‑term emotional consequences for the victim were devastating. She experienced nightmares, anxiety, isolation and drug addiction.
It is apparent from the examination of other cases involving appeals against sentence for child sex offences that the total effective sentence of 6 years' imprisonment imposed by the trial judge is significantly more lenient than sentences imposed in cases which have some features comparable to the respondent's offending. Even taking into account the respondent's advanced age and his health conditions (which are nevertheless comparable with offenders in a number of the other cases), the differences in the sentences are marked and unjustifiably favourable to the respondent.
The respondent was convicted after trial and maintained his position of denial at the time of sentencing. The fact that he pleaded not guilty was not an aggravating factor, but it does mean that he did not have the significant mitigating factor present in some other cases of pleading guilty and showing remorse. The only relevant mitigating factors were the respondent's advanced age and his ill health.
Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial portion of the period of life which is left to an offender of advanced age. However, whether leniency should be given to an offender of advanced age and, if so, to what extent, depends on all the facts and circumstances of the particular case. Age is only one factor in the sentencing process, and advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or is otherwise inappropriate.[63]
[63] See, Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] - [35] (Steytler P; McLure & Miller JJA agreeing).
An offender's illness may be a mitigating factor if it cannot be treated effectively in prison or if the nature of the illness will result in imprisonment being more onerous for the offender than would ordinarily be the case. However, the courts must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health.[64]
[64] See, R v Smith (1987) 44 SASR 587, 589; (1987) 27 A Crim R 315, 317 (King CJ; Cox & O'Loughlin agreeing); HFM [53] (Buss JA; McLure P & Mazza JA agreeing).
In Smith v The State of Western Australia,[65] Buss JA reviewed various provisions of the Prisons Act 1981 (WA) and the Prisons Regulations 1982 (WA) in relation to the provision of medical treatment for prisoners. His Honour noted that those responsible for the administration of prisons are under a duty to ensure that medical care and treatment is provided to prisoners, and that permission for a prisoner to be absent for the purpose of medical treatment can be given.[66]
[65] Smith v The State of Western Australia [2010] WASCA 176.
[66] Smith [68].
In the present case, there was nothing to suggest that the respondent's age or his medical conditions would result in imprisonment being significantly more onerous. The trial judge found that the respondent's medical conditions were capable of being adequately treated in a prison context. The respondent's age was comparable to that of a number of other offenders. Further, as the trial judge rightly acknowledged, the respondent had had the benefit of many years of freedom in the community after the commission of the offences, as is not unusual in such cases.[67] Whilst his age was a relevant factor, it was not such as could justify a total sentence of the order that was imposed in this case, having regard to the nature and seriousness of the offences, and all relevant sentencing factors.
[67] FJG [71].
The respondent also submits that in addition to the sentence of 6 years' imprisonment, he was made a reportable offender and made the subject of a mandatory family violence restraining order for the term of his life. The suggestion appears to be that these are matters which are relevant in determining the severity of the sentence imposed. However, these are not factors that distinguish the respondent's case from other comparable cases. In any event, the Sentencing Act 1995 (WA) provides that a sentence must not be reduced because a violence restraining order has been made against an offender.[68]
[68] See s 123(2) and s 124 of the Sentencing Act.
The total effective sentence of 6 years' imprisonment was not commensurate with the overall seriousness of the offending. It did not bear a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances, and all relevant sentencing factors, including the seriousness of the offending as a whole, the pattern of sentencing in reasonably comparable cases and the limited mitigation. The proper exercise of the sentencing discretion required a substantially greater accumulation of the individual sentences in order to mark the very serious nature of the respondent's overall offending, and to reflect the primary sentencing considerations of appropriate punishment and general deterrence, having regard to the need to protect vulnerable children. The sentence imposed was unreasonable and plainly unjust, and error can be inferred based on the first limb of the totality principle. The ground of appeal has been made out.
The respondent did not submit that the discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. There is no basis for invoking that discretion. The trial judge imposed a sentence that was substantially less than the sentence open on a proper exercise of the sentencing discretion. Appellable error has been clearly established, and this court's intervention is necessary to ensure the preservation of proper sentencing standards.

Resentencing

On the hearing of the appeal, counsel for the respondent sought the opportunity to provide the court with up‑to‑date information regarding the respondent's health in the event that the appeal was allowed and this court moved to resentence.[69] An affidavit sworn by the respondent on 20 November 2018 was subsequently filed. In that affidavit, the respondent states that he requested a medical report from the prison, but it had not been provided. In the affidavit he then sets out his own account of his medical conditions. He states that he was due to have an operation to control the flow of urine from his bladder in late 2017. This did not occur due to his imprisonment. He says that he now carries bags that collect his urine during the day and while he sleeps at night. These bags hinder his walking and he and other prisoners are conscious of the smell of urine, particularly in confined cells. He states that he has suffered a kidney infection whilst in prison and believes that he is at risk of being placed on dialysis. He states that his blood pressure has also been very high since his imprisonment. Whilst none of this is confirmed in the report of a medical professional, we are prepared to accept it for the purposes of resentencing. It must be said, however, that this information seems to largely reflect the information that was before the sentencing judge.
[69] Appeal ts 15 - 17.
On 18 December 2018 a further affidavit of the respondent was filed with an application seeking an extension of time in which to file it. There was no prejudice and an extension of time was granted.
In his second affidavit the respondent states that he has not yet seen a doctor for the purpose of preparing a medical report. However, a 'progress note' from a doctor at the prison is annexed. This note is a review of the respondent's prison medical records. The note refers to the respondent's hypertension, chronic obstructive airways disease and urological issues. The doctor states that all of these conditions are being dealt with in prison to the same standard as would be provided in the community. There is likely to be a deterioration in the respondent's health over the next six years, whether or not he is in prison. None of this suggests that the respondent cannot be properly treated in prison or that time in prison will be significantly more onerous by reason of any illness. In any event this is only one factor to take into account.
After taking into account the maximum penalties, the facts and circumstances of the offences and all other relevant sentencing factors, the appropriate total effective sentence is one of 8 years and 9 months' imprisonment. That can be achieved by reducing the sentence on count 6 to 2 years and 9 months' imprisonment (solely for totality reasons) and ordering that the sentences on counts 1, 4 and 6 be cumulative. The sentences and orders for concurrency on the other counts remain unaltered.
The new total effective sentence is therefore one of 8 years and 9 months' imprisonment, which should be taken to have taken effect on 1 December 2017. The respondent remains eligible for parole. He will therefore be eligible to be considered for release on parole when he has served 6 years and 9 months calculated from 1 December 2017.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
Associate to the Honourable Justice Hall
21 DECEMBER 2018